Slashdot Mirror
Can Employer Usurp Copyright On GPL-Derived Work?
An anonymous reader writes "I am a recent graduate, and I've been working on my own on a project that uses GPL-licensed libraries. Later a university department hired me, on a part-time basis, to develop this project into a solution that they needed. The project's size increased over time and soliciting help from the open source community seemed like the obvious thing to do. However, when I suggested this, my boss was not interested, and it was made clear to me that the department's position was that copyright of the whole thing belonged to them. Indeed, by default work created for an employer belongs to the employer, so I may have gotten myself in the same trap discussed here years ago. Even though I want to release my code to the public I don't know whether I have the legal right to do so. I did start the project on my own. And, since no written or verbal agreement was ever made to transfer copyright over to my employer, I question whether they can claim that they now own the extended version of the project. Also, the whole project relies on GPL libraries, and without those libraries it would be useless. Can they still claim copyright and prevent me from publishing the source code even though it is derived from GPL software?" Some early commenters on the submission pointed out that it matters whether the libraries were licensed under the LGPL vs. the GPL.
no GPL violation if they do not distribute. what are your grounds for suggesting this is a GPL violation ?
All the work you did for them belongs to them. However, they may not be legally entitled to use it how they'd like. If it's based on GPL code and they don't want to release the whole thing under the GPL, they'll need to rewrite the sections under the GPL before they can have their way with it.
Let's be clear. You have no rights to do whatever you want with the code you wrote for them.
I'd also like to note that I work for a large company that knowingly pays me to do exactly this all day. I write proprietary software using GPL libraries and such all day. We just don't distribute it.
Gah. Every time this kind of story gets posted to Slashdot we go through the same conversations.
You entered into the employment and provided them with the code base, they most likely have a claim to it.
All the work you did for them is work-for-hire, they own it.
There's nothing wrong with using GPL libraries for internal proprietary software.. the GPL is a *distribution* license, you haven't said anything about distribution so I'm assuming they're not distributing it, in which case the GPL is irrelevant.
There's lots and lots of source code in the world, plenty of it is free for you to hack on, move on.
How we know is more important than what we know.
If your project is only used internally, i.e. if it's not distributed, the GPLedness of the libraries you're using plays no role. If you're not distributing, the GPL places no restrictions whatsoever on what you do with the libraries. Now, since you started the project before getting paid to do so, it might be the case that the step where you so to say 'gave' it to the university counts as distribution, and then there would be no alternative to an at-least-GPL-Free license for your project, but that is something you should ask a lawyer about, not slashdot.
Before they can have their way with it, yes - but they can use it internally - just as I can make derived works from GPL code and use them however I want, myself or in my company. What I can't do is distribute it, sell it, etc... but if I base my employers in-house time-tracking system on some GPL code - the company is under no usage restriction whatsoever, and is under no obligation to share those changes with anyone else.
If they do want to distribute the stuff outside their organisation, they'll have to do so under the terms of the GPL - other than that scenario, they can do whatever they want internally.
No. If I hire someone to extend the linux kernel (or something else that is GPL licensed), I own those changes. If I choose to distribute them, I'm required to distribute them under the GPL, but I am not obligated to distribute them and my employees have no right to distribute them. To put it simply: the code aint under the GPL until the copyright owner says it is. The copyright owner can even choose to distribute it under some other more restrictive license.. it would be a copyright violation, and third parties could possibly sue me, but that's my choice. Nothing is "automatically" GPL.
How we know is more important than what we know.
He doesn't need to change the license.
1. Alice starts a GPL project.
2. Bob hires Alice to write an extension to the GPL project.
3. During her employ (or before, it doesn't matter) Alice uses some GPL libraries written by Claire.
4. Alice leaves Bob's employ.
FACT 1: Bob owns all the changes Alice made while in his employ.
FACT 2: Alice had no right to distribute changes owned by Bob.
FACT 3: Bob is not obligated to distribute the changes.
FACT 4: As the GPL only relates to distribution, not use, Bob is free to use the software.
FACT 5: If Bob later distributes the changes without placing those changes under the GPL, both Alice and Claire can sue him.
Nothing "automatically" becomes GPL software.
How we know is more important than what we know.
According to the GPL FAQ over at gnu.org, internal corporate use does not count as distribution: http://www.gnu.org/licenses/gpl-faq.html#GPLRequireSourcePostedPublic
This is what it boils down to, and what people often forget or misunderstand about GPL. You can do with GPL code whatever you want internally as long as you don't distribute it. It is a license that specifies how the party someone distributes to has to distribute it when he/she does.
The code OP wrote on his own is on his copyright and he can distribute under the GPL. The extensions he wrote for his employer are owned by the employer (he has the copyright). If he wants to distribute it, the employer has to respect the GPL.
They can claim copyright because they own what you produced at the time you were employed there (usually, may depend on the contract).
Since you are at a university it might be smart to see if there are any regulations or memos that recommend or require that department-developed software becomes open source. I know that some countries, particularly in the EU, see that tax-payed software should become publicly available. Try make some suggestions in this direction.
NB: The message above might reflect my opinion right now, but not necessarily tomorrow or next year.
I've heard solid arguments in both directions as to whether internal corporate use counts as distribution,
By whom? The only time I've ever heard anyone suggest that internal corporate use counts as distribution was by the MySQL morons as an attempt to scare up business. The FSF even came out against them saying they were wrong and their arguments were damaging to the community.
How we know is more important than what we know.
Is it possible to do two distinct forks simultaneously, if you're the one doing the coding on both forks? Couldn't your employer argue that your contributions to the personal fork are inevitably derived from the code you wrote for their fork? And if you write your fork first, and then soon thereafter write the employer's fork, isn't the employer's fork inevitably derived from your personal fork, since you wrote both?
I think a single person simultaneously (or even with weeks) writing both forks is a bad idea, at least from a legal "who owns this code" standpoint.
Any work done before he worked for them is his copyright and he could release that but any work done after his hire is theirs and as long as they keep it in house, there is no violation.
This varies very much from country to country. In many European countries the work you do outside work is your own. In the US that should also be true, but your employer is allowed to create contracts which take away everything you should own. So, the summary doesn't give us enough information. You need to know a) where exactly this is happening b) what contracts were in place c) what exactly the guy did; what discussions he had and exactly what comments are in the code. Generally he shouldn't post that information since his posting would be discoverable in any lawsuit. He should discuss everything with his lawyer since, in civilised countries, that kind of discussion protects any speculative things he may say that might be harmful to him from being available to his opponents.
=~ s,(.*),<sarcasm>$1</sarcasm>,g if any_point_you_wish();
It is legislation, not case law. Section 35(6) of the Australian Copyright Act 1968: "Where a literary ... work ... is made by the author in pursuance of the terms of his or her employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work ... ." Computer Software is a 'literary work' for the purposes of the act.
Note that it isn't all code written by an employee, just code written for your job.
IANAL, but you can look at the law yourself: http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s35.html
This is a question that can only really be answered by a lawyer familiar with your circumstances and the laws in your jurisdiction. For example, by default, in Canada, if you're hired as a contractor to produce a work, you retain the copyright on that work (or so I was taught in my 100-level Business Law class). However, I don't believe this is true in the US. It's also not true in either country if you're hired as a salaried employee.
But really, plenty of other people will be offering legal advice, and the reality is that this matter won't go to court because it's not worth the time or money for you or the university. You can get a lawyer's opinion that you're in the clear to release your work, but even that's only so helpful to you -- if you threaten or bully your employer, that may just set them against you. (On the other hand, it may be just the thing! Maybe they need to see that you won't be pushed around. Different people respond to different tactics.)
The most elegant solution to your problem is politics. Convince your boss's boss and your boss's respected colleagues that your work would be better off shared -- people's opinions are ultimately derived from the opinions of the people they respect. You've made good use of an open-source base, right? Make sure they understand that there's value in tapping into that community. Allay their fears. Show them the positive side. Get people on your side.
If you can swing this right, it won't matter what the legalities are because the one of the university's officers will sign a waiver disclaiming interest in the code and you'll be in the clear for sure -- and your boss will be pleased at having done something good.
Sure, you should have got the signature before you started working; then you wouldn't have to spend cycles on this problem. Still, it may be fixable.
And if that doesn't work, just remember: the implementation is twice as good and ten times as quick to write when you've done it once before!
Even better answer: http://www.gnu.org/licenses/gpl-faq.html#InternalDistribution
No, in that case the organization is just making the copies for itself. As a consequence, a company or other organization can develop a modified version and install that version through its own facilities, without giving the staff permission to release that modified version to outsiders.
consult a lawyer, but IMO the key thing you said is:
"I did start the project on my own. And, since no written or verbal agreement was ever made to transfer copyright over to my employer, I question whether they can claim that they now own the extended version of the project."
it was yours to start with. they paid you to do some extra work on it. there was no transfer of license.
they may "own" any of the work-for-hire stuff you did while employed by them (depends on the nature of the employment - usually, in simple terms, if you're a contractor, you own your work but if you're an employee, they do) BUT THEY DO NOT OWN THE COPYRIGHT, AND THEY DO NOT OWN YOUR PRIOR WORK.
BTW verbal agreements are worth the paper they're written on - doesn't matter what they claim you said, if they can't produce a signed transfer agreement, it means nothing. same as if an employer verbally agrees that you will get paid quadruple for working overtime, unless that's standard practice where you work it's unenforcable unless it's in writing. and same as if the salesman says you can opt out of the contract at any time for any reason without penalty - if it's not what the contract says, it means nothing.
never trust a verbal agreement. they're worthless. this is true anywhere, not just in employment.
BTW, crap like this is why i *NEVER* sign an employment agreement without carefully looking at the clauses to do with ownership of work. if it says anything other than "what i do during work time on work equipment is yours, what i do on my time on my own equipment is mine" i send it back for another edit. i've had one or two bosses quibble about that until I ask them if they want to start paying me for 24 hours a day rather than 7.25.
(that question was always a good answer to the occasional managerial whinges about long hair and beard too)
Actually the copyright on any code written "during work time" (or otherwise understood to be part of a job, be careful with that), is not the coder's to licence as he pleases, so it does not even matter what is in the employment contract. The code will be considered a "work for hire" (google that exact term for more information : it is the term used in copyright law, and is legal jargon)
His employer owns all rights to the code, except for 2 things :
1) the employer cannot deny the coder actually wrote that code (up-front attribution is not required, on-demand confirmation is required, e.g. "I want to hire person X, did he actually do the work in his CV on project Y ?" must be answered truthfully)
2) the coder gets to show, demonstrate, explain the functionality of the code to anyone he pleases*, **
(and -but be more careful- the coder is free to distribute extracts out of these materials for educational purposes)
* which can include limited distribution, e.g. in a job interview conducted over mail, however it must be clearly understood to not be used for anything other than portfolio work
** this explain bit can be used to get the code into the GPL program legally. The essential point is that the coder gets the work in, with his only involvement being explaining what it does to someone else, WITHOUT exchanging any of the protected work. In response to specific questions you can then (afterwards) use things like pseudocode. The coder cannot legally do this himself, but there's no law against him guiding -no matter how closely- another to do it. Given legal precedent, it would be very wise not to touch the computer of the guy doing the commit for any reason. If possible, document the exchanges made (do them over email ?, note down somewhere (in your gmail box for example) that you talked over the phone and what you talked about, or provide small "meeting reports", again mailed to yourself, that'd be a great help to any lawyer if it ever becomes a legal case)
Distribution, creation of derivative works (a second implementation of it by the same coder of the same thing would most likely be considered a derivative work, especially if parts of the code would turn out to match perfectly), and/or use in any manner other than described above is a violation of copyright law (and most likely also a serious violation of your employment contract)
And, frankly, don't tell your boss you're doing this. There's no legal necessity here, just common sense. Oh nothing in this post is legal advice for any case at all, it is merely a small summary of part of copyright law for informational purposes. It might be wrong, not applicable in your state, ... so use at your own risk. Contact a lawyer for legal advice.
Personally I think he'd be going at this from the human angle.
It's a university?
The careers of Academics are generally heavily based on publishing the work they've done with their names attached.
For coders it's less explicit but having a large body of published work can also be important and academics generally get the idea of open source.
Talk to some senior academics you get on well with.
Talk about it the same way as you would if the university were not allowing you to publish research done on uni time.
They may not like the idea and weigh in on your side which would be a big help.
Worst case you don't really get anywhere.
Best case some bullish professor will arrange things so your work gets published.
You may end up with some academics name on the code along with yours.
Storming about and arguing about who owns the code is very unlikely to do any good since you probably don't and the GPL doesn't help you on that score.
Allies in the right place are worth a thousand lawyers.
The blunt truth is that he made two stupid mistakes.
1) He didn't discuss the university's position on this and get it made clear in the contract in the first place, and
2) He came to Slashdot for legal advice.
It's been shown countless times that Slashdotters in general *do not understand how law works*. They assume that one can deduce how the law works logically, and that's how it is.
Well, it's not. The only way to know about how the law works is to learn how it works. It's not always logical, it's not always the way it *should* be (in a reasonable *or* in a logical world). I've actually been criticised for pointing out the latter, as if pointing out that the law doesn't work in that idealised way meant I endorsed its flaws (which is another stupid thing to do, but Slashdotters aren't always the detached paragons of common-sense that some would like to see themselves as).
Even if they understand the GPL in isolation, this case requires one to know how this relates to employment laws, jurisdictions, "works for hire", blah blah...
Bottom line- being an expert in IT and related fields does not qualify you to answer legal questions. IANAL, and neither are the vast majority of those contributing to this thread. And the problem is sorting out those who really *do* know what they're talking about from those who simply think they do.
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
You are absolutely wrong about A and B. You need to go read the GPL terms. If someone uses or releases code under GPL and his company chooses to use his GPLed code, then that company has to make the source available under the same terms they got the code, ie GPL. The only exception I am aware of is this; if you use GPLed code and as long as you DO NOT DISTRIBUTE it, then you are not obligated to make the source code available.
My karma is not a Chameleon.
I am not a bookmark manager, but what the hell. Those folks actually spent a bit of time thinking about this shit, you know. If you're still confused after reading the FAQ, direct your question to GNU or FSF, not bloody slashdot.
May we live long and die out
That's not correct. Unless you did the work as a university employee, or someone compensated by the university for doing the work, there is no transfer of copyright or assignment of any rights, just because you were a student at the time.
Now if you have been granted a scholarship, assistanceship, or employment with the UNI. There may be some term of the contract that assigns ownership to the university.
There may also be some matters that have special terms -- for example, students conducting a masters or P.h.D. thesis, may be required to assign or sign certain rights to the school, over their final submission (such as the right to publish), before it can be accepted.
But that is an exception to the rule.